1714509 (Refugee)

Case [2021] AATA 659

1714509 (Refugee) [2021] AATA 659 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714509

COUNTRY OF REFERENCE:                   Iran

MEMBER:Simone Burford

DATE:5 February 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 05 February 2021 at 3:27pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Baha’i – credibility assessment – country information – official and societal discrimination – restrictions on access to medical services – personal vulnerabilities – age and fragility – significant chronic health issues – lack of family support – inability to subsist – ‘systematic conduct’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AGA16 v MIBP [2018] FCA 628
Appellant S395/2002 v MIMA (2003) 216 CLR 473
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Ram v MIEA (1995) 57 FCR 565
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089
WAKZ v MIMIA [2005] FCA 1065

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

    Background

  2. The applicant is a [age]-year-old Iranian woman[1].  She claims to be a member of the Bahai faith.  Before coming to Australia, she had been living with her (second) husband of 30 years in Mashhad, Iran. Her husband, who was also a Baha’i, died in Iran in November 2012.

    [1] The Tribunal notes the applicant claims to be have…

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Details
AGLC
1714509 (Refugee) [2021] AATA 659
Case
[2021] AATA 659
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse to grant the applicant, an Iranian woman claiming to be Baha'i, a protection visa. The applicant arrived in Australia in September 2016, having previously visited in 2007. Her husband, also a Baha'i, died in Iran in 2012, after which her personal circumstances deteriorated, leading her to seek protection in Australia.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or under section 36(2)(aa) on complementary protection grounds. This required the Tribunal to assess the applicant's credibility, her well-founded fear of persecution for reasons of religion, and the real chance of suffering significant harm if returned to Iran, considering relevant country information and her personal vulnerabilities.

The Tribunal acknowledged inconsistencies in the applicant's evidence, attributing them to her age, anxiety, and imperfect recollection, rather than a lack of genuine fear. It accepted her claim to be Baha'i and found her account of her experiences and fears of return to be genuine, given her personal frailties and circumstances, including her age, chronic health issues, and lack of family support in Iran. The Tribunal also considered the country information regarding official and societal discrimination against Baha'is in Iran.

Ultimately, the Tribunal concluded that the decision under review should be remitted for reconsideration. This indicates that while the applicant's claims were accepted as genuine, the delegate's original decision was found to be flawed and required further assessment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).Background The applicant is a [age]-year-old Iranian woman[1]. She claims to be a member of the Bahai faith. Before coming to Australia, she had been living with her (second) husband of 30 years in Mashhad, Iran. Her husband, who was also a Baha’i, died in Iran in November 2012. [1] The Tribunal notes the applicant claims to be have been born in [Year 1] rather than [Year 2]. The Tribunal has used the birthdate appearing on her identity documentation, however the Tribunal accepts based on her presentation at the hearings and her personal history, including having a child who was born in [year], that she is likely to be older than [age] years of age and was likely born in [Year 1] as claimed. However, the Tribunal does not regard the discrepancy to be relevant for the purposes of this application. The applicant arrived in Australia on [a] Visitor visa [in] September 2016. She had previously visited Australia in March 2007, returning to Iran [in] June 2007. The applicant travelled to Australia on an Iranian passport and claims to be an Iranian national. Copies of her Iranian passport, issued [in] 2015, and other identity documents were provided to the Department. The delegate accepted the applicant’s identity and there is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection. On this basis, and given the delegate had no concerns about her claimed nationality, the Tribunal finds that the applicant is a citizen of Iran, which is also her receiving country for the purposes of the refugee and complementary protection assessments. The applicant has a sister and brother living in Australia and splits her time living with both siblings who provide her with support and care. Her sister is separated and has [number of] children. She had another brother who was living in Australia but is now deceased. She has another sister in [Country 1]. At the first hearing the applicant told the Tribunal she has no family remaining in Iran. She has one daughter who is in her [age range] and living in [Country 2], in [location], where she moved following the Iranian Revolution. She told the Tribunal she does not have a good relationship with her daughter who was upset when she remarried. They have limited contact and last spoke several months prior to the first hearing. She has one step-son who is in his mid-[age range] and who lived in Mashhad. She has ‘had nothing to do with him’ for 5 years. In Iran her husband had worked for the [government] but retired prior to the Revolution. He was on a government pension which she continued to receive after his death. She had worked in an office [for an employer] before being dismissed in 1983 after the Revolution. She has not been employed since that time.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal notes that it has had regard, in particular, to the 2020 DFAT Country Information Report on Iran which is the most recent DFAT report prepared for this purpose.CONSIDERATION OF CLAIMS AND EVIDENCEAnalysis, reasons and findings For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.The applicant’s credibility The Tribunal notes that there were elements of the applicant’s evidence which have changed over time, including with respect to her experiences in Iran. At times her evidence was also vague and contradictory. The Tribunal formed the view that these issues were primarily to do with the applicant’s age and her anxiety regarding her possible return to Iran. The Tribunal formed the view that she occasionally downplayed some aspects of her life, including the extent of her contact with other family members and potential supports in Iran. For example, she said she had no family members remaining in Iran but later said she had found out about the death of her cousin though extended family there. She also said she had no supports in Iran, however later said she had been cared for by members of the Baha’i community following her fall in Iran. However, the Tribunal assessed these inconsistencies or overstatements were largely due to the applicant’s desire to impress upon the Tribunal the difficulties she would face on return to Iran and her imperfect recollection of events. The Tribunal also discussed with the applicant the fact that she had come to Australia once before and returned to Iran and then had waited several years after her husband died in 2012 before coming to Australia and seeking protection. She said that when she came the first time she had a duty to return to her husband. She said when he was living she was relatively safe. She said she wanted to mourn him properly after his death but after her fall her situation there deteriorated and she could not care for herself and became afraid she would be harmed. On balanceand having regard to the applicant’s personal frailties and circumstances, the Tribunal accepted her evidence and found her account of her experiences in Iran and her fears of return to be genuine and to be recounted to the best of her recollection and capacity.Applicant’s Baha’i faith The Tribunal accepts the applicant is a member of the Baha’i faith. This claim was accepted by the delegate on the basis of the applicant’s evidence at her interview. The Tribunal places weight on that finding. The Tribunal discussed the applicant’s practice of her faith in Australia and Iran with her at the second hearing. The Tribunal found her knowledge of the Baha’i faith and her account of her practice consistent with country information regarding the practice of Bahai’s generally and in particular in Iran. The Tribunal also notes the applicant provided documentation from the Local Spiritual Assembly of the Baha’is of [Suburb 1] confirming the applicant is a member of the Australian Baha’i community. While that letter was very brief, in the context of the applicant’s evidence and the findings of the delegate, the Tribunal accepts it as evidence of her ongoing membership of the Baha’i community in Australia.

Decision

Reasons for decision

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s.36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below. DECISION MAKING FRAMEWORKCriteria for a protection visa As noted above, the criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b). Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA of the Act, which are extracted in the attachment to this decision. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Credibility assessments

Ratio Decidendi

Legal Principle Established

The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular at [8], [13], [17]–[19] and [27]–[28].Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal notes that it has had regard, in particular, to the 2020 DFAT Country Information Report on Iran which is the most recent DFAT report prepared for this purpose.CONSIDERATION OF CLAIMS AND EVIDENCEAnalysis, reasons and findings For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.The applicant’s credibility The Tribunal notes that there were elements of the applicant’s evidence which have changed over time, including with respect to her experiences in Iran. At times her evidence was also vague and contradictory. The Tribunal formed the view that these issues were primarily to do with the applicant’s age and her anxiety regarding her possible return to Iran. The Tribunal formed the view that she occasionally downplayed some aspects of her life, including the extent of her contact with other family members and potential supports in Iran. For example, she said she had no family members remaining in Iran but later said she had found out about the death of her cousin though extended family there. She also said she had no supports in Iran, however later said she had been cared for by members of the Baha’i community following her fall in Iran. However, the Tribunal assessed these inconsistencies or overstatements were largely due to the applicant’s desire to impress upon the Tribunal the difficulties she would face on return to Iran and her imperfect recollection of events. The Tribunal also discussed with the applicant the fact that she had come to Australia once before and returned to Iran and then had waited several years after her husband died in 2012 before coming to Australia and seeking protection. She said that when she came the first time she had a duty to return to her husband. She said when he was living she was relatively safe. She said she wanted to mourn him properly after his death but after her fall her situation there deteriorated and she could not care for herself and became afraid she would be harmed. On balanceand having regard to the applicant’s personal frailties and circumstances, the Tribunal accepted her evidence and found her account of her experiences in Iran and her fears of return to be genuine and to be recounted to the best of her recollection and capacity.Applicant’s Baha’i faith